Homelessness and the Limits of Enforcement

One of the difficulties in understanding the legal issues involving homelessness is the fact that so many different areas of law are in play. I recently presented a webinar on the limits of enforcement with respect to homelessness, and I thought it might be a good idea to summarize some of the major issues. For a deeper dive, you can access my archived webinar here.

Martin v. City of Boise and Prohibitions on Camping, Sleeping, or Lying in Public

We get frequent questions about this Ninth Circuit case, what it means, and how it impacts local governments. The case found that the City of Boise’s enforcement of ordinances prohibiting camping, sleeping, or lying in public violated the Eighth Amendment ban on cruel and unusual punishment if an individual does not have a meaningful alternative (such as space in a shelter or a legal place to camp). My blog about this case, which was originally decided in September 2018, provides a summary and thoughts on how it impacts Washington local governments.

In the meantime, the Ninth Circuit Court of Appeals denied a request for rehearing before the full Ninth Circuit and amended its opinion slightly. Five judges joined in lengthy dissents from the denial of rehearing, and the City of Boise has sought review from the United States Supreme Court. No word yet on whether the Supreme Court will accept review, but we will keep you posted.

The Martin case is, in my opinion, part of a trend where courts conduct close scrutiny of enforcement practices that impact the homeless. What follows are a few examples of that trend.

Unauthorized Encampments—Seizures

The Martin case involves issuance of criminal citations to homeless individuals. A different Ninth Circuit case, Lavan v. City of Los Angeles, addresses a related issue—due process requirements for the removal of unauthorized encampments on public property.

Prior to clearing encampments, local governments must provide notice to camp resident (72-hour minimum notice is common). It is also important to have outreach personnel present during encampment removal, whose job it is to help individuals in an encampment identify shelter options or alternative locations to go to. Personal property found during the encampment removal must be held for a certain amount of time so that it can be claimed by the owner. For example, the City of Seattle’s Unauthorized Encampment Removal Policy provides for a holding period of 70 days.

Unauthorized Encampments—Searches

In 2017, the Washington Court of Appeals ruled that tents and shelters set up on public property and used for habitation are protected from unreasonable searches under the Washington State Constitution. In State v. Pippin, Mr. Pippin was arrested when the police found drugs in his tent. The court ruled that law enforcement officers needed to obtain a search warrant before searching Mr. Pippin’s tent. The court acknowledged the pervasiveness of homelessness and the need for the law to be flexible in responding to it, stating:

The law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious. The temporary nature of Pippin's tent does not undermine any privacy interest.

Use of Vehicles for Habitation

A King County Superior Court judge ruled in 2018 that an individual residing in a vehicle may have homestead rights in the vehicle. The Homestead Act protects a person’s residence and essential possessions from judgments and liens. Steven Long, a homeless individual who resided in his vehicle, challenged the City of Seattle’s impoundment of his vehicle and the $500 impound fee charged by the towing company.

Although cars and trucks are not traditionally thought of as residences with respect the Homestead Act, the court noted that under RCW 6.13.010, “the homestead consists of real or personal property that the owner uses as a residence.” The court ruled that the impound itself was legal, but that the impound fee constituted a lien on the vehicle, which should have been exempt under the Homestead Act.

It is important to note that as a Superior Court case this decision is not precedent for Washington local governments. However, it is currently pending before the Washington Court of Appeals, and MRSC will provide a summary and analysis once a decision is issued.

Panhandling Regulations

The Washington Supreme Court struck down an ordinance prohibiting begging or panhandling on First Amendment grounds in the 2016 case of City of Lakewood v. Willis. MRSC analyzed the case in this blog article, which provides a good overview.

In light of Willis, MRSC recommends that local governments review their regulations and enforcement practices. Asking for help or aid is protected speech and courts will closely scrutinize regulations that focus on certain types of speech (such as soliciting aid). Public safety laws (such as obstructing traffic) may present appropriate enforcement alternatives when fairly applied, since these laws do not regulate protected speech.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Oskar Rey

Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992.